Copeland v Ludwig
[1994] IRCA 112
•22 November 1994
CATCHWORDS
Amalgamated union - express provision in rules that Sub-Branch Officers are to retain their offices after amalgamation - whether rules authorise an alteration changing offices from "full time" to "honorary" - whether such a rule change would impose on members conditions, obligations or restrictions that are oppressive, unreasonable or unjust - whether the National Executive's decision was not made in good faith - powers of the Industrial Relations Commission under s.118A(1) and (6) Industrial Relations Act 1988 (Cth) - whether power to remove the right of an organisation to enrol members.
Industrial Relations Act 1988 (Cth) - ss 118A(1) and 196(a) and (c)
The Building Workers' Industrial Union of Australia & Ors v. The ATAIU and BWIU Amalgamated Union (decision delivered 30 June 1992)
Davis v. Pulp and Paper Workers Federation of Australia (1963) 8 FLR 277
Re Mellor's Application (1987) 17 FCR 120
Saint v. Australian Postal and Telecommunications Union (1976) 30 FLR 385
ROGER COPELAND, GEOFFREY SUTTON and NICK MINOSKI v. W. P. LUDWIG & ORS
VI No. 1041 of 1994
KEELY J.
MELBOURNE
22 November 1994
IN THE INDUSTRIAL RELATIONS COURT )
)
OR AUSTRALIA ) No. VI 1041 of 1994
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
ROGER COPELAND, GEOFFREY SUTTON and NICK MINOSKI
Applicants
- and -
W P LUDWIG, K BALLIN, R BLEWITT, S BOOTH, C BOSWORTH,
E BRISCHKE, G BUCKLAND, E J BUTLER, I CAMBRIDGE, F CHAMBERS,
B COCHRAN, P CURRIE, T DALY, R DAVIES, J DUNNERY, V FALCONER, J GLISSON, A HARPER, S HARRISON, C HAYES, D HAYES,
M HINDLE, G IVORY, G LIVERMORE, W LOWE, B MARTIN, F McINERNEY, B MELKLEJOHN, S MUSCAT, D O'DEA, M O'SHEA, B PATON, F PHILLIPS,
D RATCLIFFE, R REDMOND, G ROBERTS, M RUDD, G RYAN, R SMITH,
T STEWART, H SUGARS, S WALTERS, M WHEELER, B WILSON, T MUSCAT, AWU-FIME AMALGAMATED UNION
Respondents
CORAM: Keely J.
PLACE: Melbourne
DATE: 22 November 1994
MINUTES OF ORDERS
THE COURT ORDERS THAT:
That the respondents, other than AWU-FIME Amalgamated Union, perform and observe the rules of the AWU-FIME Amalgamated Union (the union):
(a)By permitting and taking all necessary steps to ensure that each of the Secretary, Organisers and each of the members of the Executive of the Victorian Sub-Branch of the Building Construction & Joinery Branch of the union (the Sub-Branch) are able to perform the duties and functions of their respective offices in accordance with the rules of the union.
(b)By taking all necessary steps to ensure that in accordance with the terms of the office of Sub-Branch Secretary held by Roger Copeland, the union pays to Roger Copeland the salary and emoluments of his office in the sum of $968.00 per week or such higher amount as may be payable to an Assistant Branch Secretary of the union from time to time, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the union.
(c)By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Geoffrey Sutton the union pays to Mr Sutton the salary and emoluments of his office in the sum of $886.00 per week or such higher amount as may be payable to an organiser of the union from time to time, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the union.
(d)By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Nick Minoski the union pays to Mr Minoski the salary and emoluments of his office in the sum of $886.00 per week or such higher amount as may be payable to an organiser of the union from time to time, payable since 22 November 1993, until such time as the office is terminated in accordance with the Rules of the union except to the extent that amounts equal to that weekly amount have already been paid to Mr Minoski either by way of workers' compensation weekly payments or by way of additional amounts already paid by the union in order to make the total weekly amount received by him equal to the salary and emoluments payable to him by the union in respect of his office.
(e)By treating as null and void any purported decision to remove or dismiss Roger Copeland or Geoffrey Sutton or Nick Minoski from their respective offices as Secretary and Organisers of the Sub-Branch respectively.
(f)By treating as null and void any purported decision to remove or dismiss Roger Copeland or Geoffrey Sutton or Nick Minoski from their respective employment with the union as sub-branch secretary and organisers."
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
)
OR AUSTRALIA ) No. VI 1041 of 1994
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
ROGER COPELAND, GEOFFREY SUTTON and NICK MINOSKI
Applicants
- and -
W P LUDWIG, K BALLIN, R BLEWITT, S BOOTH, C BOSWORTH,
E BRISCHKE, G BUCKLAND, E J BUTLER, I CAMBRIDGE, F CHAMBERS,
B COCHRAN, P CURRIE, T DALY, R DAVIES, J DUNNERY, V FALCONER,
J GLISSON, A HARPER, S HARRISON, C HAYES, D HAYES,
M HINDLE, G IVORY, G LIVERMORE, W LOWE, B MARTIN, F McINERNEY, B MELKLEJOHN, S MUSCAT, D O'DEA, M O'SHEA, B PATON, F PHILLIPS,
D RATCLIFFE, R REDMOND, G ROBERTS, M RUDD, G RYAN, R SMITH,
T STEWART, H SUGARS, S WALTERS, M WHEELER, B WILSON, T MUSCAT, AWU-FIME AMALGAMATED UNION
Respondents
CORAM: Keely J.
PLACE: Melbourne
DATE: 22 November 1994
REASONS FOR JUDGMENT
On 24 December 1993 an order was made calling upon certain respondents to show cause why the following orders should not be made:
"(a)The First to Fortyfirst Respondents perform and observe the Rules of the AWU-FIME Amalgamated Union ("the Union") by permitting and taking all steps to ensure that each of the Secretary, Organisers and each of the members of the Executive of the Victorian Sub-Branch of the Building Construction & Joinery Branch of the Union ("the Sub-Branch") are able to fully perform the duties and functions of their respective offices in accordance with the Rules.
(b)The First to Fortyfirst Respondents perform and observe the Rules of the Union by taking steps to ensure that in accordance with the terms of the office of Secretary held by Roger Copeland, the Union pays to Roger Copeland the salary and emoluments of his office in the sum of $968.00 per week, until such time as the office is terminated or terminates in accordance with the Rules of the Union.
(c)The First to Fortyfirst Respondents perform and observe the Rules of the Union by taking all steps to ensure that in accordance with the terms of the office of Organiser held by each of Geoffrey Sutton and Nick Minoski the Union pays to each of Mr. Sutton and Mr. Minoski the salary and emoluments of their respective offices in the sum of $886.00 per week until such time as either respective office is terminated or terminates in accordance with the Rules of the Union.
(d)Further or in the alternative, the Union, its servants and/or agents treat as null and void any purported decision to remove and/or dismiss Roger Copeland and/or Geoffrey Sutton and/or Nick Minoski from their respective positions of Secretary and Organiser of the Sub-Branch.
(e)Such further or other Orders as to the Court seem fit."
On 24 February 1994 the court made interim orders, in similar terms to paragraphs (a), (b), (c) and (d) above, for the performance and observance of the rules of the AWU-FIME Amalgamated Union (the union) by respondents, other than the union - see (1994) 53 I.R. 114.
The union became a registered organisation under the Industrial Relations Act 1988 (Cth) (the Act) on or about 1 November 1993, following upon the amalgamation of the Australian Workers Union (the AWU) with the Federation of Industrial, Manufacturing and Engineering Employees (FIME - called FIMEE in some documents). On or about 27 November 1992, before its amalgamation with the AWU, FIME had amalgamated with the Amalgamated Society of Carpenters and Joiners of Australia (the ASC & J). On amalgamation with FIME the former ASC & J formed the basis for the Building, Construction and Joinery Branch of FIME (the BC & J Branch); when FIME amalgamated with the AWU that branch continued to exist under the union structure, with sub-branches in Victoria, New South Wales, South Australia and Tasmania.
The applicants are members of and office-holders in the union. The first applicant, Mr Copeland, is the Secretary of the Victorian Sub-Branch of the BC & J Branch (the Sub-Branch) and the second and third applicants, Mr Sutton and Mr Minoski, are organisers of the Sub-Branch. Each applicant is an elected office-holder and has been since the declaration on 17 June 1993 of the results in an election in FIME. The term of each office was four years, expiring on 30 June 1997. The first applicant had previously held office in the ASC & J from approximately 1983, the third applicant since 1985 and the second applicant was first employed by the ASC & J in February 1990. Although the applicants worked within the Sub-Branch, they were employed by the union and their salaries and the other expenses associated with their employment were treated as expenses of the Sub-Branch.
Decisions before November 1993 of the National Executive and National Conference of FIME re reducing number of paid officers
Prior to the amalgamation with the AWU and the National Executive meeting on 19 November 1993, the Sub-Branch's financial position and its level of staffing had been considered at a national level by FIME. On 4 March 1993 the National Conference passed a resolution that had the effect of reducing the number of full time elected officials representing the Sub-Branch from seven to four. As a consequence the number of full time paid positions in the Sub-Branch was nine, comprising:
1 elected Sub-Branch secretary;
3 elected organisers;
3 appointed organisers;
2 appointed administrative staff.
The motion was moved by Mr Harper (as National Vice President of FIME) and seconded by the first applicant, Mr Copeland.
That decision on 4 March 1993 was made in the context of discussions and negotiations for the amalgamation of AWU and FIME, including discussion as to how many positions there would be at the elections to be held for the Sub-Branch in June 1993. A meeting of the Sub-Branch was held on 19 February 1993 and was attended by each of the applicants and Mr Harper. The minutes state that Mr Sutton asked Mr Harper "what positions would be available at the elections" and the response was that ". . . the sub branch would have a choice of 1 Secretary, 1 Assistant Secretary and 2 Organisers elected or 1 Secretary and 3 Organisers elected"; they also quoted Mr Harper as saying that "At no time was anyone to lose a position. The make up was left to the sub branch to discuss and get back to National Office."
The Sub-Branch chose "1 Secretary and 3 Organisers elected" and there then arose for consideration the question which of the four elected organisers (i.e. one of the applicants or Mr Les Martin or Mr Les Noonan) would resign. The understanding reached with Mr Harper was that the organiser who agreed to resign from his elected position would be employed as an organiser on the same terms and conditions as his elected counterparts. Eventually Mr Martin decided to step down from his elected position. Mr Martin continued to work as a full time paid organiser for the Sub-Branch and in June 1993 he was elected to the honorary position of assistant secretary of the Sub-Branch. On 6 May 1993, Mr S Harrison, the National Secretary of FIME, addressed the FIME National Executive and said words to the effect that a "cost cutting exercise has to be embarked on" but that it " . . . should be left to the Branches with as little interference from the National Office as possible unless the Branch is reluctant to act". A motion, moved by Mr Harrison and seconded by Mr Harper, National Vice President of FIME, was carried unanimously. It read as follows:
"That A. Harper and M. Hindle develop and implement a plan to bring Building, Construction and Joinery Branch to a cost neutral position. A report including action undertaken to be given to the next National Executive."
At the National Executive meeting of FIME held from 14-17 September 1993 Mr Harper produced a written report, as directed by the National Executive on 6 May 1993, in which he made a recommendation, based upon which a resolution was carried requiring the termination of some Sub-Branch staff. On 16 September 1993, Mr Harper wrote to the secretary of the BC & J Branch and the secretaries of the sub-branches asking that the directions set out in the resolutions of the National Executive made on 15 September 1993 be carried out. The Sub-Branch was required by the National Executive to terminate the employment of seven staff including Mr Martin.
Meeting of the National Executive after Deputy President McBean's decision
The inaugural meeting of the National Executive of the union was held from 15 - 19 November 1993 in Sydney. On 19 November 1993 after the decision by Deputy President McBean on 9 November 1993 had been circulated to its members, the resolution concerning the amendment to rule 38(5)(p) was put to the meeting and carried unanimously. Both the former rule 38(5)(p) and the amendment are set out later in these reasons in the section dealing with the rules. There was written material before the National Executive dealing with the membership of the BC & J Branch and the Sub-Branch. Mr Harrison spoke about the financial situation of the BC & J Branch and expressed the view that the steps previously taken by the sub-branches to reduce costs would have been appropriate but for the decision by Deputy President McBean on 9 November 1993 which "meant that they would have to take action". It should be stated that Mr Harrison may have misunderstood the meaning and effect of the Deputy President's decision - as did Mr Harper, a matter dealt with in the next section of these reasons.
After the normal business at the National Executive meeting on 18 November 1993, Mr Harrison held a meeting of the secretaries of all branches of the union, including the BC & J Branch. At that meeting a resolution, which was eventually carried by the National Executive, was drafted by Messrs Harrison, Harper and Borowick. At the time when it was carried on 19 November 1993, the second and third applicants were elected organisers and the third organiser was Mr Les Noonan. The resolution also made Mr Noonan's position honorary; however, he continued to work and to be paid as a full time organiser with the union.
On 19 November 1993 the respondent Steven Harrison, as National Secretary of the union, wrote to Mr Copeland as follows:
"After hearing my presentation of a report, which covered aspects of Deputy President McBean's decision on the Building and Construction Industry, the National Executive of the union, at its meeting held in Sydney from November 15-19, 1993, carried the following resolution unanimously:
"As Conference is not sitting, this National Executive deems it necessary and expedient to amend the Rules of the union so that Rule 38 (p) shall be amended so that all offices mentioned therein (with the exception of Branch Secretary) shall be honorary offices."
In my report I stressed the fact that Deputy President McBean made some criticism that the structure of the Building, Construction and Joinery Branch was ineffective and unrepresentative within the Building Industry.
It is unfortunate that I have to inform you, as a result of the decision carried unanimously by the National Executive, that your position is an honorary position and that full-time employment with the union will no longer be available to you.
I wish to place on record my appreciation of your services to the organisation during a most difficult period.
A redundancy package will be made available to you and Arthur Harper and Mick Hindle will be in contact with you regarding this package during next week."
The powers of the Industrial Relations Commission under s.118A
By letter dated 19 November 1993 the respondent Arthur Harper, as National Vice-President of the union, wrote to "Branch Secretaries and Sub-Branch Secretaries - Building Construction and Joinery Branch" as follows:
"As you are aware, the Australian Industrial Relations Commission has determined to remove the ability of the union to enrol carpenters in the building and construction industry (with the exception of government and local government employees).
In addition to commercial building and construction, the decision of Deputy President McBean also applies to the ability of the union to enrol carpenters in the housing and civil sectors of the industry."
It will be noted that in that letter Mr Harper said that the "Commission has determined to remove the ability of the union to enrol carpenters in the building and construction industry (with the exception of government and local government employees) . . . [and] the ability of the union to enrol carpenters in the housing and civil sectors of the industry" (emphasis added). The court has heard submissions from counsel for the applicants and the respondents as to the effect of Deputy President McBean's decision and the relevant statutory provisions. I accept the submission by the applicants' counsel that it was not correct to state, as Mr Harper did in that letter, that the Australian Industrial Relations Commission (the Commission) had removed the ability of the union to enrol those employees as members. The respondents' senior counsel accepted that the orders did "not prevent the union from enrolling". The applicants' counsel accepted that those orders prevent the union from "representing" industrial interests of those carpenters and joiners, under the Commonwealth Industrial Relations Act 1988 (as distinct from State Acts eg. the legislation relating to the Victorian Building Industry Agreement).
The orders made by Deputy President McBean on 9 November 1993 are set out at pages 36-37 of annexure "T" to Mr Harper's affidavit, sworn 11 February 1994, which was tendered by the respondents. The order relevantly provided as follows:
"1.(a) That the Construction, Forestry, Mining and Energy Union (CFMEU) shall have the right, to the exclusion of The AWU - FIME Amalgamated Union (AWU-FIME) to represent under the Industrial Relations Act 1988 (Cth) (the Act) the industrial interests of any person employed or engaged by any person, body, corporation, employer or principal who is engaged in the building and/or construction industry in the occupation of a carpenter and/or joiner. . . . "
It will be seen that order 1(a) only excluded the union from the right to represent under the Industrial Relations Act 1988 (Cth) the industrial interests of certain carpenters and/or joiners. The order did not purport to take away the union's right to enrol those person as members. It was limited to excluding the union's "right to represent under [the Commonwealth] Act [their] industrial interests". In so limiting his order, Deputy President McBean was applying the terms of s.118A(1)(a) of the Act, which authorised the order.
In my opinion s.118A(1) does not confer upon a Full Bench or a Presidential Member of the Commission the power to take away the right of an organisation to enrol members. The sub-section included the following provision:
"118A(1) Subject to this section and subsection 202(3), the Commission may, on the application of an organisation, an employer or the Minister, make the following orders:
(a)an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;"
Sub-section (5) imposed a duty on the Commission to "refer the matter to a designated Presidential Member unless the Commission is satisfied that the rules of the organisations concerned do not need to be altered" and sub-section (6) imposed certain duties upon the designated Presidential Member.
In my opinion s.118A(6) does not confer upon a designated Presidential Member the power to determine an alteration to the eligibility rule of an organisation which removes that organisation's right to enrol as members employees of a particular class or group. The Full Bench or Presidential Member does not have that power under s.118A(1) and, upon the matter being referred under s.118A(5), the designated Presidential Member's power under s.118A(6) is limited to determining "such alterations (if any) of the rules of any organisation concerned as are, in the Presidential Member's opinion necessary to reflect the Commission's order" (emphasis added).
In my opinion, where the Commission under s.118A(1)(c) orders "that an organisation of employees is not to have the right to represent under this [Commonwealth] Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation" it can not be said to be "necessary to reflect the Commission's order" (s.118A(6)) for the designated Presidential Member to determine an alteration to the organisation's eligibility rule which removes that organisation's right to enrol those employees - as distinct from removing any rule that gives it the power to represent the industrial interests of those employees under the Commonwealth Act.
In reaching that conclusion I have not overlooked the fact that s.204(8)(a) of the Act provides as follows:
" This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:
(a)determined by a designated Presidential Member under subsection 118A(6) or 208(6); . . . "
However although s.118A(6), read in the light of s.204(8)(a), does confer a power on the designated Presidential Member to determine "an alteration to the eligibility rules" of an organisation, in my opinion that power is limited to altering the eligibility rule so as to permit an organisation to enrol as members persons who would not otherwise be eligible for membership; it does not confer the power to remove an organisation's right to enrol employees. It should perhaps be added that the parties referred to the decision of a Full Court of the Federal Court in National Union of Workers v. Waterside Workers Federation of Australia (1990) 44 I.R. 79 but senior counsel for the respondents accepted that that decision was "neutral on that point" (see page 83 of the report).
The respondents' counsel said that it "was common ground . . . that the Industrial Relations Commission has in fact made orders altering the eligibility rules consequent upon section 118A proceedings . . . in some cases have extended . . . In other cases they have reduced eligibility rules". He referred the court to some decisions of the Commission, including that of Deputy President Moore in the Aluminium Industry Case (delivered 30 May 1991) and that in The Building Workers' Industrial Union of Australia & Ors v. The ATAIU and BWIU Amalgamated Union (delivered 30 June 1992). In the latter case Deputy President Williams made orders under s.118A(1) and said:
" The next question is whether I should, in the circumstances of these matters, make any orders under s.118A(5) of the Act. In Re The Federated Miscellaneous Workers Union of Australia (the Flagstaff Case) (Print K 1514), I expressed the following views as to the appropriate action to be taken by the Commission before any order is made under s.118A(5):
"If it is correct, and in my view it is, that the exercise of the power conferred by s.118A(6) is supplementary to and supportive of the exercise of the powers conferred by s.118A(1), then it follows that the need to exercise the power under s.118A(6) should also be determined by the person or persons constituting the Commission for the purposes of ss.118A(1) and (5), not the designated Presidential Member to whom the matter is referred under s.118A(6). The latter should only be concerned with the form of any rule alteration needed, not the need for any such rule alteration. It further follows that the obligation of the Commission under s.118A(5) is to decide whether or not the rules of any and, if so which, of the organisations concerned needs to be altered, having regard not only to incompatibility as between the s.118A(1) orders and the eligibility rules of the organisations concerned but also any other relevant matters such as those referred to earlier in this decision.
. . .
It may well be that, where a matter is referred under s.118A(5) without any statement as to the determination of the member or members of the Commission making the referral on the question of which organisation's rules are to be altered, the designated Presidential Member should presume that there was an intention expressed by the referral itself that alterations are to be made to any rules that are incompatible with the order or orders made under s.118A(1). . . . "
Both FIMEE and ASCJA however did lay claim to being able to enrol under their respective eligibility rules, the relevant classes of employees concerned and there was evidence of such enrolment by or on behalf of those two organisations. The evidence to date also supports the contention that FIMEE and ASCJA were acting in concert to establish the ASCJA as a force in Queensland contrary to the status quo that existed some two years ago and that their activities in this area have led to confusion amongst employees, employers and employer organisations as to the entitlements of the various organisations to enrol and/or represent the employees concerned.
Taking into account:
1.the incompatibility of the orders proposed with the eligibility rules of FIMEE and ASCJA,
. . .
4.the desirability for some uniformity to exist so far as possible throughout Australia in so far as union coverage is concerned.
I am of the view that, notwithstanding the fact that the orders proposed to be made under s.118A(1) are consented to by the parties, the eligibility rules of FIMEE and ASCJA need to be altered to reflect those orders and I propose to make the appropriate orders under s.118A(5) of the Act." (emphasis added)
That decision appears to suggest that the Commission, in the course of determining an application under s.118A(1), is to consider whether the eligibility rule of an organisation should be altered in such a way as to remove an organisation's pre-existing right to enrol persons. I am unable, with respect, to agree that that is the correct construction of the sub-section. As I have said, in my opinion s.118A(1) does not empower the Commission to make any orders in respect of a right to enrol persons as members; the powers conferred are confined to making orders as to that organisation's right to represent, under the Commonwealth Act, the particular class of employees. The right to enrol persons is a different right. An organisation which, by reason of an order under s.118A(1), is excluded from exercising the right to represent a particular class of members under the Commonwealth Act is not thereby deprived of its right to represent them for other purposes e.g. before State courts or State or Commonwealth tribunals or in negotiations with employers.
It was conceded by the respondents' senior counsel that no alterations to the rules of the (amalgamated) union had been made by a designated Presidential Member under s.118A(6), after Deputy President McBean's decision, i.e. that no order had been made purporting to alter the union's eligibility rule so as to remove its right to enrol as members the carpenters and joiners the subject of the orders by Deputy President McBean. The respondents stated that the union sought leave to appeal from Deputy President McBean's decision and that the Commission had reserved its decision on that matter.
The applicants' contentions of fact and law
In their contentions of fact and law, after setting out the employment history of each applicant, including the offices they held, and referring to the letter of Mr Harrison (set out above) the applicants stated:
"28.Due to the actions of the Respondent since 19 November 1993 the First and Second Applicants have been unable to properly perform the duties and functions of their offices.
29.Full time officers of the Union are entitled to be paid a salary pursuant to the Rules of the Union.
30.The performance by the Applicants of their respective duties of office carries with it an entitlement to be paid a salary.
31.Pursuant to Rule 80 of the Union's rules each of the Applicants is entitled to remain in his respective full time office until 30 June 1997.
32.By purporting to amend the description of the offices held by each of the Applicants from "Full Time" to "Honorary" the Respondents in fact abolished each of those offices.
33.The abolition of the offices held by each of the Applicants is contrary to S. 195(1)(c) of the Act in that it constitutes the "removal from office" of the holders of the offices when such persons had not been found guilty under the rules of one of the matters specified in S. 195(1)(c) of the Act.
34.The abolition of the offices held by each of the Applicants is contrary to S. 196(c) of the Act in that it imposes on members of the Union `conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust'.
35.The abolition of the offices held by each of the Applicants is contrary to Rule 20(6)(iii) which provides that no member shall be dismissed from any elected office unless he has been found guilty of an offence pursuant to that Rule or has ceased to be eligible to hold such office.
36.Each of the Applicants was told at a meeting held on 28 September 1993 that they would have a job for 4 years.
PARTICULARS
The Applicants were told this by Michael Hindle, the secretary of the Building, Construction and Joinery Branch of FIME, at a meeting held on 28 September 1993 of the Victorian officials of the said Building, Construction and Joinery Branch. The eighteenth Respondent, Arthur Harper was present for some of this meeting. Furthermore the First Applicant was told by Mr Hindle in telephone conversations on numerous occasions throughout 1993 that he and the other Applicants were safe in their jobs until June 1997.
37.It was a term of each of the Applicant's employment with the Union that they would be employed for the remainder of their respective terms of office.
38.The Respondents have breached the terms of employment of each of the Applicants by purporting to terminate their employment with the Union."
On the first day of hearing two further contentions were added, namely:
"1.The decision made by the National Executive of the AWU-FIME Amalgamated Union to alter the rules of the Union so that each of the offices held by the Applicants were described as honorary was a decision which was not made bona fides (sic).
2.The decision made by and/or on behalf of the Union to terminate the employment of each of the Applicants was a decision which was not made bona fides (sic)."
Rules 38(5)(p), 80 and the schedule
Rule 80 of the union's rules, which appears under the heading "Section 2 - Amalgamation Rules", included the following provisions:
"RULE 80 - ENABLE TO HOLD OFFICE PROVISION 2
(AWU AND FIME)
(1)This Rule shall prevail over any conflicting provisions in any other Rule during the period from amalgamation day until the 30th June, 1997.
. . .
(5)The holders of Office in the AWU and the FIME shall, on amalgamation day, assume an Office in the Union in accordance with the following schedule:
(a)The organisation in which the Office is held as at the day before amalgamation day is set out in Column 1.
(b)The Office existing as at the day before amalgamation day is set out in Column 2.
(c)The Office in the Union that will be occupied on and from the amalgamation day is set out in Column 3. . . .
(d)The term of Office of the Office set out in Column 3 shall expire on the date set out in Column 4.
(e). . .
(6). . .
[The Schedule]
COLUMN 1COLUMN 2 COLUMN 3 COLUMN 4
. . .
BUILDING, CONSTRUCTION AND JOINERY BRANCH
FIMEEach existing All Branch and Sub- 30/6/1997 "
Branch and Sub- Branch Officers
Branch Office retain their Office
in AWU-FIME
Those offices included the offices of Sub-Branch Secretary (full time) and Sub-Branch Organisers (full time), as appears from rule 38 of the union's rules. Before the amendment it included the following:
"5(p)Building Construction and Joinery Branch
. . .
There shall be a Victorian Branch Sub-Branch Executive comprising the following:
-One Sub-Branch President (honorary)
-One Sub-Branch Secretary (full time)
-One Sub-Branch Assistant Secretary (honorary)
-Three Sub-Branch Organisers (full time)
-Five Sub-Branch Committeemen (honorary)"
After the National Executive on 19 November 1993 carried the resolution set out above, rule 38(5)(p) read (emphasis added to indicate changes made):
"(p)Building Construction and Joinery Branch
. . .
There shall be a Victorian Branch Sub-Branch Executive comprising the following:
-One Sub-Branch President (honorary)
-One Sub-Branch Secretary (honorary)
-One Sub-Branch Assistant Secretary (honorary)
-Three Sub-Branch Organisers (honorary)
-Five Sub-Branch Committeemen (honorary)"
It will be noted that the word "(honorary)" in the second and fifth lines had been substituted for the words "(full time)".
Whether the purported amendment to rule 38(5)(p) was authorised
Having considered all of the submissions and the authorities cited, in my opinion the purported amendment to rule 38(5)(p) was not authorised by the union's rules. The reasons for that opinion may be stated briefly.
First, in my opinion the power to alter the union's rules must be construed in the light of the rules as a whole, including the express provisions of rule 80 - the terms of which are set out earlier. That rule expressly provided that it "shall prevail over any conflicting provisions in any other Rule during the period from amalgamation day until the 30th June, 1997". The purpose of that provision is plain. No rule is to conflict with rule 80 between November 1993 and 30 June 1997. It would be pointless to include such an express provision if the rule making power included the power to introduce a provision "conflicting" with rule 80. The provision in rule 38(5)(p) was purportedly altered to read that there "shall be a Victorian Branch Sub-Branch Executive [including] . . . one Sub-Branch Secretary (honorary) [and] three Sub-Branch Organisers (honorary)" - instead of those offices all being "(full time)". In my opinion that alteration was a provision which conflicted with rule 80 and the power to alter the rules, on its true construction, did not authorise an alteration of the rules introducing a provision conflicting with any of the provisions of rule 80. The schedule to rule 80 referred to "each . . . Sub-Branch Office", and said that "All . . . Sub-Branch Officers retain their Office in AWU-FIME". Those words necessarily included the offices of Sub-Branch Secretary and Sub-Branch Organisers, which rule 38(5)(p) expressly described as full time offices.
Secondly if, contrary to the opinion expressed above, the power to alter the rules had authorised their alteration in such a way that a provision in a rule could conflict with any provision in rule 80 then, in my opinion, in the circumstances disclosed by the evidence, that rule making power would impose, on those members of the union who were former members of the A.S.C. & J., conditions, obligations or restrictions that are unreasonable and unjust and accordingly would be contrary to s.196(a) of the Act, because of the provision in s.196(c). The fact that the rule making power, so construed, would be contrary to the Act, is itself a reason for construing the rule in such a way that it is not contrary to the Act i.e. construing it as not conferring the power to alter rule 38(5)(p) by substituting "(honorary)" for "(full time)".
In that connection I apply the reasoning of the decision of Spicer CJ. and Eggleston J. in Davis v. Pulp and Paper Workers Federation of Australia (1963) 8 FLR 277 at 280-281 in the following passage:
"But the rule applicable to statutes is based on the presumption that the legislature does not intend what is unjust (see Doro v. Victorian Railways Commissioners [1960] V.R. 84 at p. 86), and somewhat similar considerations must apply to the construction of the rules of an organization such as this, particularly where the injustice of the rule may be a statutory ground of invalidity.
. . . If we had thought that the rules should be construed as retrospective, we should have found much force in the reasoning of the Commonwealth Court of Conciliation and Arbitration in Riordan v. Federated Clerks Union of Australia (1952) 74 CAR 5 . . . " (emphasis added)
The first of those two passages was quoted by Gray J. in Re Mellor's Application (1987) 17 FCR 120 at 124. I agree with his Honour's statement on that page that:
"Clear words in the rules may produce such results, subject to the effects of s 140 of the Conciliation and Arbitration Act 1904 (Cth), but in my view an ambiguous rule should not be so construed." (emphasis added)
Reference should be made to a submission by the respondents' senior counsel, which was based upon the decision of the Australian Industrial Court in Saint v. Australian Postal and Telecommunications Union (1976) 30 FLR 385 (Dunphy and Evatt JJ. - St John J. dissenting). That decision is not an authority binding upon this court and, having considered carefully counsel's submissions, and the reasons for judgment in that decision, in my respectful opinion the reasons for judgment of St John J. are to be preferred to those of the majority.
Having reached the conclusions set out above, it is not necessary for me to express an opinion as to the submissions by the applicants' counsel (1) that the purported amendment to rule 38(5)(p) constituted the abolition of the offices of the applicants; (2) that such abolition constituted the removal from office of the applicants and was contrary to s.195(1)(c) and s.196(c) of the Act; and (3) that such abolition was contrary to rule 20(6)(iii), which prohibited the dismissal of the applicants from office in the absence of findings that they were guilty of an offence (see paragraph 32-35 of the applicants' contentions of fact and law).
The claim that the decision was not made in good faith
Having regard to the conclusion expressed above, that the purported amendment to rule 38(5)(p) was not authorised by the union's rules, it is not necessary to decide the applicants' contention that the decision was not a decision made in good faith. However, as a large proportion of the hearing time was devoted to matters relevant to that issue, I should state that I accept the submissions of the respondents' counsel that (1) the onus is on the applicants and (2) the applicants have not demonstrated that the decision was not made in good faith. The applicants' contention is rejected.
The claimed breaches of the contracts of employment
The contentions of fact and law of the applicants contained the following paragraphs:
"36.Each of the Applicants was told . . . that they would have a job for 4 years.
. . .
37.It was a term of each of the Applicants' employment with the Union that they would be employed for the remainder of their respective terms of office.
38.The Respondents have breached the terms of employment of each of the Applicants by purporting to terminate their employment with the Union."
Each of those contentions was denied by the respondents in their contentions of fact and law.
I accept the evidence of Messrs Copeland and Sutton that statements were made to them by Messrs Hindle and Harper to the effect that "they would have a job for 4 years" and that "they would be employed for the remainder of their respective terms of office" and I reject the evidence to the contrary given by Messrs Harper and Hindle. I accept that the statements that were made to the applicants by them were understood by the applicants (and correctly so understood) as not preventing their removal from office for conduct of the type referred to in s.195(1)(c)(i), (ii) and (iii) of the Act.
On the material before the court I am not satisfied that any such statements to the respondents resulted in the contracts of employment containing terms to that effect. Accordingly the orders sought against the union in paragraphs 2(a), (b), (c) and (d) of the written submission by the applicants' counsel, dated 22 September 1994, will not be made.
The orders
The court will make the other orders set out in that written submission. After a letter from the respondents' solicitors informed the applicants' solicitors of the names of the members of the National Executive of the union, to enable the applicants "to amend the originating documents", the applicants' counsel, on 15 September 1994, tendered exhibits "OO" and "PP" which contained proposed alterations to the named respondents. The list of the respondents named in the title to these proceedings has been amended to accord with exhibit "PP". The orders are as follows:
That the respondents, other than AWU-FIME Amalgamated Union, perform and observe the rules of the AWU-FIME Amalgamated Union (the union):
(a)By permitting and taking all necessary steps to ensure that each of the Secretary, Organisers and each of the members of the Executive of the Victorian Sub-Branch of the Building Construction & Joinery Branch of the union (the Sub-Branch) are able to perform the duties and functions of their respective offices in accordance with the rules of the union.
(b)By taking all necessary steps to ensure that in accordance with the terms of the office of Sub-Branch Secretary held by Roger Copeland, the union pays to Roger Copeland the salary and emoluments of his office in the sum of $968.00 per week or such higher amount as may be payable to an Assistant Branch Secretary of the union from time to time, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the union.
(c)By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Geoffrey Sutton the union pays to Mr Sutton the salary and emoluments of his office in the sum of $886.00 per week or such higher amount as may be payable to an organiser of the union from time to time, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the union.
(d)By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Nick Minoski the union pays to Mr Minoski the salary and emoluments of his office in the sum of $886.00 per week or such higher amount as may be payable to an organiser of the union from time to time, payable since 22 November 1993, until such time as the office is terminated in accordance with the Rules of the union except to the extent that amounts equal to that weekly amount have already been paid to Mr Minoski either by way of workers' compensation weekly payments or by way of additional amounts already paid by the union in order to make the total weekly amount received by him equal to the salary and emoluments payable to him by the union in respect of his office.
(e)By treating as null and void any purported decision to remove or dismiss Roger Copeland or Geoffrey Sutton or Nick Minoski from their respective offices as Secretary and Organisers of the Sub-Branch respectively.
(f)By treating as null and void any purported decision to remove or dismiss Roger Copeland or Geoffrey Sutton or Nick Minoski from their respective employment with the union as sub-branch secretary and organisers.
I certify that this and the preceding twenty (20) pages are a true copy of the reasons for judgment herein of the Honourable Justice Keely.
Associate:
Dated: 22 November 1994
Solicitors for the applicants: Howie & Maher
Counsel for the applicants: Mr D. Staindl
Solicitors for the respondents: McClellands
Counsel for the respondents: Mr M. Sweeney S.C.
Date of hearing: 5, 6, 7, 8, 9, 12, 13, 14,
15, 16, 19 and 20 September 1994
Date of judgment: 22 November 1994
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